Opinion
No. 33707.
October 9, 1939.
1. FALSE PRETENSES.
Under statute providing that any person selling or otherwise dealing with property previously sold or on which there is a lien without informing other person of exact state of property shall be guilty of obtaining under false pretenses whatever he receives from other person, indictment must describe property obtained or received with the same reasonable certainty as is required in prosecutions for larceny, and proof must correspond to allegations (Code 1930, sec. 921).
2. FALSE PRETENSES.
Where indictment charged receiving of money under false pretenses under statute providing that any person who sells or otherwise deals with property previously sold or on which there is a lien without informing other person of exact state of property shall be guilty of obtaining under false pretenses whatever he receives from other person, case was not made out by proof that only merchandise was obtained (Code 1930, sec. 921).
3. CRIMINAL LAW.
Matter not assigned as a ground in motion for new trial in prosecution for obtaining money under false pretenses could not be availed of on appeal (Code 1930, sec. 921).
APPEAL from the circuit court of Smith county; HON.E.M. LANE, J.
A.M. Edwards, of Mendenhall, for appellant.
The defendant was indicted under Section 921 of the Code of 1930.
The first assignment of error is that the court erred in admitting the evidence over the objections of the defendant of the deed of trust given by the defendant Evans Hales, and Mona Hales, his wife, to the prosecution witness, C.P. Gray. We submit that the said deed of trust was not competent evidence, and should not have been admitted, for the reason that the description of the land, as shown in the indictment, does not correspond with that in the said deed of trust, and that in the said deed of conveyance from the said defendant, and his wife to Mrs. Emma Hales.
The second assignment of error is that the court erred in admitting the evidence of Mrs. C.P. Gray and of C.P. Gray as to the sale of merchandise said to have been sold to Evans Hales after the execution of said deed of trust. We submit that the testimony of both of said witnesses was irrelevant and incompetent, for the reason that the indictment charges that the defendant did then and there give a deed of trust on said land and thereby obtained of and from the said C.P. Gray the sum of $93.55, and not a word mentioned in the indictment relative to the sale of any merchandise.
The third assignment of error is that the court erred in overruling defendant's motion for a peremptory instruction at the close of the evidence offered for the state in this case.
The fourth assignment of error is that the court erred in refusing the peremptory instruction asked for by the defendant at the close of all of the evidence offered in the case. We submit that this instruction should have been granted for the reason that it was again most conclusively shown by the evidence that there was no intent on the part of the defendant to injure and defraud the said C.P. Gray as charged in the indictment; and it was further shown that the said C.P. Gray had full knowledge of the fact as aforesaid, that the said land had been conveyed to Mrs. Emma Hales by the defendant at the time he and his wife gave the said deed of trust on said land.
The court erred in overruling defendant's motion for a new trial. The verdict of the jury and the judgment of the court are contrary to the law and the evidence in the case. A vendor not informing purchaser of lien is not guilty where purchaser knew of it.
Overall v. State, 128 Miss. 59, 90 So. 484.
Mize Mize, of Forest, for appellant.
Appellant was indicted and tried under Section 921 of Code of 1930, being one of the sections dealing with false pretense. We think that it is essential under this section, as under the other sections dealing with false pretenses, that the property, or money, or some part of it, must be parted with and delivered up by the prosecuting witness, at the time of the execution of the deed of trust in question, in order to constitute the crime of obtaining money or property by means of false pretense.
Under the statute invoked in this case, the gist of the offense is the withholding of information regarding the exact state of the property affected by the party charged with the offense. However, regardless of whether the false pretenses consist of false representations or the mere withholding of facts constituting the motive cause inducing the owner to part with his property, one cannot be convicted of the crime, unless, at the time of the transaction, the property, or some part thereof, is parted with by the prosecuting witness.
The penal statutes are to be construed strictly, and this indictment charges that the defendant obtained $93.55 when the deed of trust was executed; whereas the evidence shows that no money was passed when the deed of trust was executed.
In the case of State v. Austin, 23 So. 34, this court held that a thing to be indictable must come within the letter as well as within the spirit of the statute, construing Section 1088, Code 1892, which is Section 921, Code 1930, enlarged. We think this holding is applicable in this case.
On the facts as disclosed by the record, Gray knew of the exact state of the property. The overwhelming testimony establishes this fact, and further establishes that the appellant acted in good faith and without any intention on his part of defrauding or misleading Gray.
W.D. Conn, Jr., Assistant Attorney-General, for the State.
It is said that the court erred in admitting in evidence the deed of trust which was the instrument out of which this prosecution grew, because it is said the description in the indictment is different from that in the trust deed. The writer has checked the two descriptions and they are the same. It is said further that the trust deed should not have been admitted because it did not contain the same description as was in the instrument by which appellant and his wife had previously conveyed the land to Mrs. Emma Hales.
We think this is an immaterial matter because the witnesses stated that the land was the same, regardless of what the description may have been. It is common knowledge that the same land can be defined by metes and bounds in any number of ways and while the descriptions may not be exactly the same, if it is the same land, then it would make no difference what the description might be.
It is said that the court erred in allowing the state to show that under this trust deed the Grays had delivered merchandise to appellant and his wife, bcause it was not charged in the indictment that the Grays were defrauded out of anything except the $93.55, mentioned in the trust deed. It will be remembered, however, that the defendant undertook to show that Gray knew he did not own the land when he gave Gray the trust deed thereon. The trust deed, in addition to securing the principal sum of $93.55, was likewise intended to secure advances of merchandise subsequent to the date of the trust deed itself. That the Grays did deliver merchandise to the defendant later is certainly evidence to rebut appellant's contention that Gray knew he did not own the land. Admission of this evidence of future advances was not per se any evidence of guilt, so far as any fraud connected with the $93.55, but it does go a long way to show that the mortgagee did not in fact know what the appellant insisted he did, so far as the title to the property was concerned.
As to the requested peremptory instruction, we think it was properly refused for the reason that it was a question of fact as to what appellant's intent was, as was it also a question of fact as to whether or not Gray knew when he took the trust deed that appellant had no title to the land involved.
Argued orally by F.F. Mize and A.M. Edwards, for appellant, and by W.D. Conn, Jr., for the State.
Appellant was indicted and convicted of a charge of false pretenses drawn under Section 921, Code 1930, the charge being that he mortgaged to the prosecuting witness a parcel of land in which the larger interest had previously been conveyed by him to another, etc. The indictment charged that as a part of this transaction, appellant received from the mortgagee the sum of $93.55, — there was no allegation of the receipt of property other than money. The proof shows that appellant did not receive any such sum or any part thereof either then or afterwards, but that the accused did later receive merchandise in the value of about forty dollars, which the prosecuting witness avers, in his testimony, was delivered in pursuance of stipulations in the mortgage covering future supplies and advances. In brief, the indictment charged the receiving of money while the proof showed only the obtaining of merchandise. Objections were made to this proof when offered, and the objections were overruled.
Under this statute, as in other cases in false pretense, the indictment must describe the property obtained or received with the same reasonable certainty as is required in prosecutions for larceny, and the proof must correspond to the allegations. 25 C.J., pp. 631, 640; 1 Wharton Crim. Proc., Sec. 643. There are two reasons for this: first, that the accused may be informed of what is charged against him, so that he may be prepared to defend the charge as made; and, second, that he may not be subject to a second prosecution for the offense charged in the first indictment, if acquitted or convicted under that indictment.
For the reasons aforesaid, the correct rule is that the proof must establish the obtaining of the property charged in the indictment, not some other property; from which it follows that where, as here, the indictment charged the receiving of money, the case is not made out by proof that merchandise only was obtained. The rule is strikingly illustrated by those cases which hold that when money is charged to have been received, the conviction is not sustained by proof that a bank check was delivered. See, for instance, McKenney v. State, 17 Ala. App. 117, 82 So. 565; Bates v. State, 124 Wis. 612, 103 N.W. 251, 4 Ann. Cas. 365.
There is a grave question under the record as now before us whether the evidence does not so strongly preponderate against the verdict on the issue of the knowledge on the part of the prosecuting witness, or of notice sufficient to constitute knowledge, as to the state of the title of the property mortgaged, that the conviction should be set aside also on that ground; but this was not assigned as a ground in the motion for a new trial, and hence cannot avail on appeal. Inasmuch as the judgment must be reversed and remanded for a new trial for the reason first above discussed, we pretermit decision on the several other points argued, as they are not likely to again arise in the case.
Reversed and remanded.